Monthly Archives: July 2018

Mr. Jones was employed by Fly Light Air Sports Limited (“The Company”) based in Sywell Aerodrome between 20 July 2006 and August 2017 as a flying instructor.

On 30 July 2017, he raised with his Line Manager and Company Director (“Mr. A”), that the aircraft he usually flew (a November Delta) required its 50 hour service. Mr. A told Mr. Jones that he would personally perform this service with another colleague. However, the next day when Mr. Jones attended work, the service had not been carried out meaning that he had to use another aircraft, Tango India.

Upon leaving the hanger, Mr. Jones passed Mr. A and complained that the requested service had not been performed. He also made what Mr. A interpreted to be a sarcastic comment.

A dispute then arose in front of a client, culminating in Mr. Jones walking away from Mr. A, but calling him a “T@*t” in the process.

Mr. A, enraged by this comment, followed Mr. Jones and the dispute continued.

Mr. A positioned himself in front of Mr. Jones to prevent him walking away again and said “Bollo*ks…don’t call me a “T@*t,”and threw a cup of tea at him,to which Mr. Jones responded by saying “Don’t say Bollo*ks to me or I will fu@!king hit you.” Mr. Jones, realising he had gone too far, immediately made clear he was not intending to hit Mr. A. However, by this stage Mr. A had had enough and stated “Right, I don’t want you flying my aircraft, pack your stuff and leave.”

Mr. Jones, believing he had been sacked, proceeded to pack his belongings in a box, left his keys on his desk and left the Company site. He did not return to work in the following days and no contact was made with him until 3 August 2017 when he was sent a letter inviting him to attend a Disciplinary Hearing scheduled for 21 August 2017 to address allegations of gross misconduct.

Mr. Jones did not attend the Disciplinary Hearing, but received an outcome letter stating that the Hearing had gone ahead in his absence and that he had been dismissed without notice for gross misconduct, specifically serious insubordination in that he called a Company Director a “T@*t”and threatened to hit him.

THE CLAIMS BROUGHT BY MR. JONES

Following the incident on 1 August 2017, Mr. Jones brought two claims in the Employment Tribunal:

A claim for unfair dismissal; and

A claim for wrongful dismissal.

In summary, a claim for unfair dismissal arises when an employee believes they have been dismissed by their employer and the decision falls outside the band of reasonable responses open to the employer in the circumstance because: (1) they were dismissed without a fair reason; and/or (2) they were dismissed without the employer having followed a fair process.

A claim for wrongful dismissal is a claim for breach of contract. The reasonableness of the employer’s conduct or otherwise is irrelevant for a wrongful dismissal claim; the Employment Tribunal simply has to consider whether the employer’s conduct has breached the Contract of Employment between the employer and the employee, i.e. whether the employee’s conduct was so serious that it would entitle the employer to treat the employment contract as terminated without notice.

THE IMPORTANCE OF FOLLOWING FAIR PROCEDURE

The first thing the Employment Tribunal had to decide in this case was the date of dismissal.

Mr. Jones claimed he was dismissed on 1 August 2017 when Mr A said, “Right, I don’t want you flying my aircraft, pack your stuff and leave.”However, the Company argued that he was not dismissed until after the Disciplinary Hearing had concluded on 21 August 2017.

The Employment Tribunal found that it was reasonable for Mr. Jones to consider himself dismissed on 1 August 2017 in the light of the comment made to him, and because numerous employees witnessed him pack his belongings in a box, leave his keys on his desk and leave site, but no one made any contact with him until 3 August 2017 to tell him that he was not dismissed, but was in fact suspended pending a Disciplinary Hearing.

The Tribunal went on to find that the conduct of Mr. Jones in calling a Company Director a “T@*t” and threatening to hit him, all of which was admitted by Mr. Jones, amounted to gross misconduct BUT found that the dismissal was “INEVITABLY UNFAIR” because a fair procedure was not followed leading up to the decision to dismiss. Employment Judge G. P. Sigsworth stated “because there was no procedure for the dismissal on 1 August 2017, and a fair procedure is an essential part of a fair dismissal, the dismissal is inevitably unfair.” He added that the Company’s actions taken after 1 August 2017 when it: (1) wrote to Mr. Jones setting out the allegations against him; (2) convened a Disciplinary Hearing on reasonable notice; (3) offered him the right of accompaniment at the Hearing; and (4) offered him the right of appeal against the decision taken at the Hearing, were too late.

Judge G. P. Sigsworth made clear that, even considering the small size of the Company (it only had six employees at the time of dismissal) and its lack of experience in HR matters, this did not negate the requirement to conduct a fair process when issuing a disciplinary sanction, which must include complying with the ACAS Code of Practice on Discipline and Grievance (“ACAS Code”).

Judge G. P. Sigsworth also found that Mr. Jones had been wrongfully dismissed as even though there had been misconduct on his part, his conduct had not amounted to gross misconduct entitling the Company to treat the employment contract as terminated without notice.

COMPENSATION

Judge G. P. Sigsworth considered that if a fair procedure had been followed, there was a 25% chance that a fair dismissal would have been achieved – on this basis he reduced the compensation awarded to Mr. Jones to reflect this (“Polkey Deduction”).

He also considered that Mr. Jones contributed to his dismissal by his actions, and made a 50% Contributory Fault deduction.

Finally, as the Company failed to follow the ACAS Code, a 20% uplift was made to the damages awarded.

In total, Mr. Jones was awarded a Basic Award and a Compensatory Award amounting to £19,017.62. He did not received a separate award for the loss of his notice as it was ruled that this had to be set off against Basic and Compensatory Awards.

LESSONS LEARNED

The lesson to be learned from this case is that all employers, no matter how small and no matter how much provocation is involved, must follow the ACAS Code as failure to do can be a costly mistake.

For help and assistance with disciplinary and grievance matters, please contact a member of the FG Solicitors team on (01604) 871 143 or email fgmedia@fgsolicitors.co.uk.

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Recent research conducted by the Henley Business School, published this month, suggests that the traditional nine to five working pattern is set to become a thing of the past over the next 10 years, coinciding with the rise in the “Side Hustle.”

“Side Hustling” is defined as running a small business or having a secondary job in addition to your main career and the research (sampling 500 UK business leaders and 1,100 working adults)suggests it can range from fitness training on the side, to stock marketing investing over breakfast!

39% of those in employment (nearly 4 in 10 employees) admit to Side Hustling, and almost 50% of business leaders have a side hustle.

SHOULD EMPLOYERS BE CONCERNED BY THIS NEW “PATCHWORK” CAREER TREND?

Employee retention is a great concern. The typical fear held by employers is that the Side Hustle will become the “main hustle,” and as a result employees with leave their employment.

Naeema Pasha (Head of Henley Careers) has likened the concept of Side Hustling to being in an open relationship – both parties know they are seeing other people, but both also know that they are getting some benefit from the other side. They don’t want to find out, after investing in the relationship, that the other side runs off with the Side Hustle after using them for their free WIFI and equipment.

ARE THESE FEARS LEGITIMATELY HELD?

It would appear not…The research suggests that Side Hustling actually has the opposite effect. Employers who embrace the practice of Side Hustling are likely to be more appealing to new recruits and are also likely to retain their best talent.

If an employee has a passion that is not necessarily their full-time employment and they are supported in developing this passion, they are more likely to be happy and engaged in their full-time employment and will deliver and perform whilst at work. In consequence, they are more likely to stay in their employment.

Danny Harmer (Chief People Officer at Metro Bank) summarised this when he said:

“If someone has a passion that is not their full-time organisation, of course there is a risk that in 10 years they might leave – but people leave work for all kinds of reasons. While they are with your organisation, have them happy and engaged, because when people are treated as individuals they do a better job.”

Henley’s research suggests that 60% of business leaders believe their staff feel happier if they are able to pursue side projects, and 69% of people engaged in Side Hustling were more positive about their work.

There is also an added benefit of creating a workforce that is developing a diverse range of skills without the Company having to incur additional training costs.

SO WHAT ARE THE RISKS IF SIDE HUSTLING IS EMBRACED BY YOUR BUSINESS?

45% of Side Hustlers have reported working more than 40 hours per week in total, and 25% have reported working more than 50 hours per week in total.

Only 30% of employers monitor and record side working!

This creates a risk for employers under the Working Time Regulations (“WTR”). Under the WTRs, an employer is not permitted to offer an employee work, which would result in them working for more than 48 hours per week on average over a specified reference period. Employers should therefore be monitoring hours worked for other employers to ensure that they are not breaching these Regulations. Alternatively, employers can require employees to “Opt-Out” of the WTRs, or extend the average reference period by putting in place a Workforce Agreement.

Another potential risk is seeing a drop in employee performance caused by employees not dedicating enough time to their main employment, but instead misusing Company resources (and Company time) by working on Side Hustle projects during designated working hours.

Similarly in this vein, potentially the biggest risk to employers is employees using confidential Company data to further their own interests and/or those of Company rivals with whom the employee may be Side Hustling.

HOW CAN EMPLOYERS BENEFIT FROM THE ADVANTAGES IN STAFF MORALE THAT SIDE HUSTLING BRINGS, BUT ADEQUATELY PROTECT THEMSELVES?

Two thirds of employers need to adapt to accommodate the Side Hustle open relationship – complacency, or alternatively refusing to accommodate Side Hustling, is likely to mean employers have a high staff turnover.

The starting point is to create a “Secondary Employment Policy.” 49% of employers interviewed as part of Henley’s research did not have one.

Policies can be used to set clear boundaries and guidelines about secondary employment, and will act as a safeguard for the employer to rely on if things go awry. Employers are encouraged to set broad guidelines and partake in adult conversations when enforcing the Policy as opposed to drafting generic checklists of what employees can and cannot do.

Secondly, employers should ensure that they have clear confidentiality obligations and adequate and enforceable post-termination restrictions in their Contracts of Employment to ensure that employees are prohibited from misusing confidential information during and after their employment.

Finally, employers must monitor the working hours of employees, including hours worked for other employers and consider requiring a working time “Opt-Out” if it appears that employees are likely to be working more than 48 hours per week on average.

For additional help and assistance on this topic, please contact a member of the FG Solicitors team on (01604) 871 143 or email fgmedia@fgsolicitors.co.uk.

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2018 JULY

Mr. Jones was employed by Fly Light Air Sports Limited (“The Company”) based in Sywell Aerodrome between 20 July 2006 and August 2017 as a flying instructor.

On 30 July 2017, he raised with his Line Manager and Company Director (“Mr. A”), that the aircraft he usually flew (a November Delta) required its 50 hour service. Mr. A told Mr. Jones that he would personally perform this service with another colleague. However, the next day when Mr. Jones attended work, the service had not been carried out meaning that he had to use another aircraft, Tango India.

Upon leaving the hanger, Mr. Jones passed Mr. A and complained that the requested service had not been performed. He also made what Mr. A interpreted to be a sarcastic comment.

A dispute then arose in front of a client, culminating in Mr. Jones walking away from Mr. A, but calling him a “T@*t” in the process.

Mr. A, enraged by this comment, followed Mr. Jones and the dispute continued.

Mr. A positioned himself in front of Mr. Jones to prevent him walking away again and said “Bollo*ks…don’t call me a “T@*t,”and threw a cup of tea at him,to which Mr. Jones responded by saying “Don’t say Bollo*ks to me or I will fu@!king hit you.” Mr. Jones, realising he had gone too far, immediately made clear he was not intending to hit Mr. A. However, by this stage Mr. A had had enough and stated “Right, I don’t want you flying my aircraft, pack your stuff and leave.”

Mr. Jones, believing he had been sacked, proceeded to pack his belongings in a box, left his keys on his desk and left the Company site. He did not return to work in the following days and no contact was made with him until 3 August 2017 when he was sent a letter inviting him to attend a Disciplinary Hearing scheduled for 21 August 2017 to address allegations of gross misconduct.

Mr. Jones did not attend the Disciplinary Hearing, but received an outcome letter stating that the Hearing had gone ahead in his absence and that he had been dismissed without notice for gross misconduct, specifically serious insubordination in that he called a Company Director a “T@*t”and threatened to hit him.

THE CLAIMS BROUGHT BY MR. JONES

Following the incident on 1 August 2017, Mr. Jones brought two claims in the Employment Tribunal:

A claim for unfair dismissal; and

A claim for wrongful dismissal.

In summary, a claim for unfair dismissal arises when an employee believes they have been dismissed by their employer and the decision falls outside the band of reasonable responses open to the employer in the circumstance because: (1) they were dismissed without a fair reason; and/or (2) they were dismissed without the employer having followed a fair process.

A claim for wrongful dismissal is a claim for breach of contract. The reasonableness of the employer’s conduct or otherwise is irrelevant for a wrongful dismissal claim; the Employment Tribunal simply has to consider whether the employer’s conduct has breached the Contract of Employment between the employer and the employee, i.e. whether the employee’s conduct was so serious that it would entitle the employer to treat the employment contract as terminated without notice.

THE IMPORTANCE OF FOLLOWING FAIR PROCEDURE

The first thing the Employment Tribunal had to decide in this case was the date of dismissal.

Mr. Jones claimed he was dismissed on 1 August 2017 when Mr A said, “Right, I don’t want you flying my aircraft, pack your stuff and leave.”However, the Company argued that he was not dismissed until after the Disciplinary Hearing had concluded on 21 August 2017.

The Employment Tribunal found that it was reasonable for Mr. Jones to consider himself dismissed on 1 August 2017 in the light of the comment made to him, and because numerous employees witnessed him pack his belongings in a box, leave his keys on his desk and leave site, but no one made any contact with him until 3 August 2017 to tell him that he was not dismissed, but was in fact suspended pending a Disciplinary Hearing.

The Tribunal went on to find that the conduct of Mr. Jones in calling a Company Director a “T@*t” and threatening to hit him, all of which was admitted by Mr. Jones, amounted to gross misconduct BUT found that the dismissal was “INEVITABLY UNFAIR” because a fair procedure was not followed leading up to the decision to dismiss. Employment Judge G. P. Sigsworth stated “because there was no procedure for the dismissal on 1 August 2017, and a fair procedure is an essential part of a fair dismissal, the dismissal is inevitably unfair.” He added that the Company’s actions taken after 1 August 2017 when it: (1) wrote to Mr. Jones setting out the allegations against him; (2) convened a Disciplinary Hearing on reasonable notice; (3) offered him the right of accompaniment at the Hearing; and (4) offered him the right of appeal against the decision taken at the Hearing, were too late.

Judge G. P. Sigsworth made clear that, even considering the small size of the Company (it only had six employees at the time of dismissal) and its lack of experience in HR matters, this did not negate the requirement to conduct a fair process when issuing a disciplinary sanction, which must include complying with the ACAS Code of Practice on Discipline and Grievance (“ACAS Code”).

Judge G. P. Sigsworth also found that Mr. Jones had been wrongfully dismissed as even though there had been misconduct on his part, his conduct had not amounted to gross misconduct entitling the Company to treat the employment contract as terminated without notice.

COMPENSATION

Judge G. P. Sigsworth considered that if a fair procedure had been followed, there was a 25% chance that a fair dismissal would have been achieved – on this basis he reduced the compensation awarded to Mr. Jones to reflect this (“Polkey Deduction”).

He also considered that Mr. Jones contributed to his dismissal by his actions, and made a 50% Contributory Fault deduction.

Finally, as the Company failed to follow the ACAS Code, a 20% uplift was made to the damages awarded.

In total, Mr. Jones was awarded a Basic Award and a Compensatory Award amounting to £19,017.62. He did not received a separate award for the loss of his notice as it was ruled that this had to be set off against Basic and Compensatory Awards.

LESSONS LEARNED

The lesson to be learned from this case is that all employers, no matter how small and no matter how much provocation is involved, must follow the ACAS Code as failure to do can be a costly mistake.

For help and assistance with disciplinary and grievance matters, please contact a member of the FG Solicitors team on (01604) 871 143 or email fgmedia@fgsolicitors.co.uk.

2018 JULY

Investigate

Promote

Dismissal

What do these all mean in relation to Employment Law? Our Principal, Floyd Graham, tells you everything you need to know in the video below.

2018 JULY

Imagine your business is a hot air balloon and you’re rapidly losing altitude. Who do you throw overboard to keep flying?

Our Principal, Floyd Graham, tells you one thing he tells all of his clients in the video below.

2018 JULY

Recent research conducted by the Henley Business School, published this month, suggests that the traditional nine to five working pattern is set to become a thing of the past over the next 10 years, coinciding with the rise in the “Side Hustle.”

“Side Hustling” is defined as running a small business or having a secondary job in addition to your main career and the research (sampling 500 UK business leaders and 1,100 working adults)suggests it can range from fitness training on the side, to stock marketing investing over breakfast!

39% of those in employment (nearly 4 in 10 employees) admit to Side Hustling, and almost 50% of business leaders have a side hustle.

SHOULD EMPLOYERS BE CONCERNED BY THIS NEW “PATCHWORK” CAREER TREND?

Employee retention is a great concern. The typical fear held by employers is that the Side Hustle will become the “main hustle,” and as a result employees with leave their employment.

Naeema Pasha (Head of Henley Careers) has likened the concept of Side Hustling to being in an open relationship – both parties know they are seeing other people, but both also know that they are getting some benefit from the other side. They don’t want to find out, after investing in the relationship, that the other side runs off with the Side Hustle after using them for their free WIFI and equipment.

ARE THESE FEARS LEGITIMATELY HELD?

It would appear not…The research suggests that Side Hustling actually has the opposite effect. Employers who embrace the practice of Side Hustling are likely to be more appealing to new recruits and are also likely to retain their best talent.

If an employee has a passion that is not necessarily their full-time employment and they are supported in developing this passion, they are more likely to be happy and engaged in their full-time employment and will deliver and perform whilst at work. In consequence, they are more likely to stay in their employment.

Danny Harmer (Chief People Officer at Metro Bank) summarised this when he said:

“If someone has a passion that is not their full-time organisation, of course there is a risk that in 10 years they might leave – but people leave work for all kinds of reasons. While they are with your organisation, have them happy and engaged, because when people are treated as individuals they do a better job.”

Henley’s research suggests that 60% of business leaders believe their staff feel happier if they are able to pursue side projects, and 69% of people engaged in Side Hustling were more positive about their work.

There is also an added benefit of creating a workforce that is developing a diverse range of skills without the Company having to incur additional training costs.

SO WHAT ARE THE RISKS IF SIDE HUSTLING IS EMBRACED BY YOUR BUSINESS?

45% of Side Hustlers have reported working more than 40 hours per week in total, and 25% have reported working more than 50 hours per week in total.

Only 30% of employers monitor and record side working!

This creates a risk for employers under the Working Time Regulations (“WTR”). Under the WTRs, an employer is not permitted to offer an employee work, which would result in them working for more than 48 hours per week on average over a specified reference period. Employers should therefore be monitoring hours worked for other employers to ensure that they are not breaching these Regulations. Alternatively, employers can require employees to “Opt-Out” of the WTRs, or extend the average reference period by putting in place a Workforce Agreement.

Another potential risk is seeing a drop in employee performance caused by employees not dedicating enough time to their main employment, but instead misusing Company resources (and Company time) by working on Side Hustle projects during designated working hours.

Similarly in this vein, potentially the biggest risk to employers is employees using confidential Company data to further their own interests and/or those of Company rivals with whom the employee may be Side Hustling.

HOW CAN EMPLOYERS BENEFIT FROM THE ADVANTAGES IN STAFF MORALE THAT SIDE HUSTLING BRINGS, BUT ADEQUATELY PROTECT THEMSELVES?

Two thirds of employers need to adapt to accommodate the Side Hustle open relationship – complacency, or alternatively refusing to accommodate Side Hustling, is likely to mean employers have a high staff turnover.

The starting point is to create a “Secondary Employment Policy.” 49% of employers interviewed as part of Henley’s research did not have one.

Policies can be used to set clear boundaries and guidelines about secondary employment, and will act as a safeguard for the employer to rely on if things go awry. Employers are encouraged to set broad guidelines and partake in adult conversations when enforcing the Policy as opposed to drafting generic checklists of what employees can and cannot do.

Secondly, employers should ensure that they have clear confidentiality obligations and adequate and enforceable post-termination restrictions in their Contracts of Employment to ensure that employees are prohibited from misusing confidential information during and after their employment.

Finally, employers must monitor the working hours of employees, including hours worked for other employers and consider requiring a working time “Opt-Out” if it appears that employees are likely to be working more than 48 hours per week on average.

For additional help and assistance on this topic, please contact a member of the FG Solicitors team on (01604) 871 143 or email fgmedia@fgsolicitors.co.uk.